Tuesday, September 28, 2010

Forgive, dear reader, a half-baked historical analogy -- or rather, suggestion of long continuity in American executives' propensity to claim power over the life and limb of anyone they deem a threat to national security. First, Obama, asserting that right in court (via Washington Post:

The Obama administration urged a federal judge early Saturday to dismiss a lawsuit over its targeting of a U.S. citizen for killing overseas, saying that the case would reveal state secrets.

The U.S.-born citizen, Anwar al-Aulaqi, is a cleric now believed to be in Yemen. Federal authorities allege that he is leading a branch of al-Qaeda there.

Government lawyers called the state-secrets argument a last resort to toss out the case, and it seems likely to revive a debate over the reach of a president's powers in the global war against al-Qaeda.

Civil liberties groups sued the U.S. government on behalf of Aulaqi's father, arguing that the CIA and the Joint Special Operations Command's placement of Aulaqi on a capture-or-kill list of suspected terrorists - outside a war zone and absent an imminent threat - amounted to an extrajudicial execution order against a U.S. citizen.

They asked a U.S. district court in Washington to block the targeting.

In response, Justice Department spokesman Matthew Miller said that the groups are asking "a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action - all on behalf of a leader of a foreign terrorist organization."

Miller added, "If al-Aulaqi wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions."

Next, Thomas Jefferson, whose commitment to the rule of law was surprisingly equivocal. Leonard Levy, in Jefferson and Civil Liberties: The Darker Side, describes Jefferson's willingness, as a leading member of the Virginia legislature during the Revolutionary War, to declare open season on an alleged Tory brigand, a deed he defended to his dying day:

The most striking departure from standards of due process of law was undoubtedly the bill of attainder and outlawry, drafted by Jefferson, against Josiah Philips and unnamed members of his gang of robbers. No instrument of criminal jurisprudence was more dreaded or violative of fair procedures than a bill of attainder and outlawry. The bloody history of such bills gained infamy because of their use as weapons of political vengeance in Stuart England. Parliament, whether Puritan or Royalist, had discovered that the most expeditious way of condemning a political opponent was to pronounce his guilt and sentence him to death...

Josiah Philips was reputed to be a Tory cutthroat who used a British commission as a shield for plundering and terrorizing the countryside. On May 1, 1778, the Council received word that Philips, 'the noted Traitor has again made an insurrection in Princess Anne County at the head of fifty men.'...[Governor Patrick] Henry placed the matter before the assembly. He also consulted Thomas Jefferson, then its influential member, who later recalled, "We both thought the best proceeding would be by bill of attainder, unless he [Philips] delivered himself up for trial within a given time."

The assembly, without debate, promptly adopted a bill of attainder, written by Jefferson, that convicted Josiah Philips for having levied war against the commonwealth, committed murder, burned houses, and wasted farms. The bill alleged that "the usual forms and procedures of the courts of law" would leave the people exposed to further crimes, and provided that if Philips and his confederates did not surrender to some lawful authority within one month, they "shall stand and be convicted and attainted of high treason, and shall suffer the pains of death, and incur all forfeitures [of all property]...And that the good people of this commonwealth may not in the meantime be subject to the unrestrained hostilities of the said insurgents, Be it further enacted, That from and after the passing of this act is shall be lawful for any person, with or without orders, to pursue and slay the said Josiah Philips, and any others who have been his associates.

Though Philips was eventually captured and convicted of robbery under due process of law, as the bill of attainder had not yet gone into effect, its passage lived in infamy. Edmund Randolph, Virginia's attorney general at the time Philips was captured, denounced the passage of the never-executed act:

There is one example of this violation in Virginia, of a most striking and shocking nature--an example so horrid, that, if I conceived my country would passively permit a repetition of it, dear as it is to me, I would seek means of expatriating myself from it. A man, who was then a citizen, was deprived of his life thus: from a mere reliance on general reports, a gentleman in the House of Delegates informed the house that a certain man [Josiah Philips] had committed several crimes...He therefore moved for leave to attaint him...he was attainted very speedily and precipitately, without any proof better than vague reports.

John Marshall, later Chief Justice of the Supreme Court and Jefferson's chief nemesis, also condemned the act. Jefferson, however, defended it:

Legislative outlawry and attainder was justifiable, Jefferson argued, when a person charged with crime withdrew from justice or forcibly resisted it [cf. the Obama administration's argument against al-Aulaqi]. In such a case the legislature should give him sufficient time to appear for trial and declare that his refusal be taken as a confession of guilt. Bills of attainder, Jefferson acknowledged, had been abused in England, but "what institution is insusceptible of abuse in wicked hands?"

As President, Jefferson was no less willing to rush aside due process when he deemed national security at stake. Convinced despite a lack of concrete evidence that Aaron Burr had plotted and acted to separate the western states from the Union, he gave the man who had accused (and betrayed) Burr, the commanding general of the US army James Wilkinson, carte blanche to embark on a mini-reign of terror -- declaring martial law, suspending habeas corpus, and arresting dozens of suspected confederates of Burr without charge. Levy:

Jefferson's reaction to his general's conduct in New Orleans was to applaud a job well done...Turning to Wilkinson's arrests, Jefferson wrote: "Your sending here Swartwout and Bollman, and adding them to Burr, Blannerhasset [sic] and Tyler, should they fall into your hands, will be supported by the public opinion." But disturbed by the fact that the evidence received against Alexander and Ogden would not be sufficient to hold them, Jefferson added, "I hope, however, you will not extend this deportation to persons against whom there is only suspicion, or shades of offense not strongly marked. In that case, I fear the public sentiment would desert you; because, seeing no danger here, violations of law are felt with strength."

Thus Jefferson measured Wilkinson's arrests by neither legal nor moral standards, but only by the extent to which public opinion would support them...

"On great occasions," wrote the President, "every good officer must be ready to risk himself in going beyond the strict line of law, when the public preservation requires it...The Feds, and the little band of Quids, in opposition, will try to make something of the infringement of liberty by the military arrest and deportation of citizens, but if it does not go beyond such offenders as Swartwout, Bollman, Burr, Blennerhasset, Tyler, etc., they will be supported by the public approbation" (83-85).

Loose analogies. Obama's targeting of Al Aulaqi is by executive order, not legislative act-- bills of attainder are forbidden by the Constitution -- and is (so far) in effect only overseas. But the justification is similar -- a lethal enemy will not subject himself to the law, so he should be denied its privileges. And one more common element: "public approbation" for the suspension of civil liberties is never lacking when the public assumes the guilt of the accused.

About Me

I'm a freelance writer and media consultant with a lasting interest in how democracy works, how it malfunctions and self-corrects. Since fall 2013 I've focused increasingly on the unfolding drama of Affordable Care Act implementation and health reform more generally.
I have a Ph.D. in medieval English literature and a propensity to parse the rhetoric and logic of our political leaders as well as that of media pundits and scholars who jump into the national debate. I wrote a dissertation on the remarkably humane and subtle medieval English anchorite Julian of Norwich, a mystic nun whose knack of squaring circles and framing paradoxes reminds me a little of our current president. A sampling of that work (mind the google gaps) is here: http://bit.ly/OzwsrR